POSTEMPLOYMENT MEDICAL EXAMINATIONS AND INQUIRIES CLARIFIED
BY THOMAS D. SCHNEID
The May 1994 “Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act” (ADA), published by the Equal Employment Opportunity Commission (EEOC) for its field investigators, provided a clarification as to what constitutes postemployment medical examinations and inquiries. The ADA permits employers to make disability-related inquiries and to require medical examinations after a conditional offer of employment has been extended to the applicant but before the applicant begins work. In the Guidance document, the EEOC provides several tests or analyses through which a fire department can test its procedures to ensure compliance.
First, the Guidance document addresses what constitutes a “bona fide offer,” which would permit a qualified employer to make disability-related inquiries. The Guidance document, citing Kansas Power and Light Company v. Burlington Northern Railroad Company, 740 F. 2d 780 (10th Cir. 1984), defined an “offer” as “an act that reasonably leads the offeree to believe that a power to create a contract has been conferred on him.” In addition, in relying on Corbin on Contracts s. 11 (1960; West Supp. 1991), an offer has been defined as “an expression by one party of his assent to certain definite terms, provided that the other party involved in the bargaining transaction will likewise express his assent to the identically same terms.” The Guidance document additionally states that a valid offer must contain the terms of the contract to be made and that the terms “must be of sufficient explicitness so that the court can perceive…the respective obligations of the parties.” [Also see Soar v. NFL Players Association, 550 F. 2d 1287 (1st Cir. 1977).] It should also be noted that invitations to deal or acts of preliminary negotiations usually are not considered offers for the purposes of this analysis. Using this analysis, fire departments should ensure that any conditional offer possesses definite terms and obligations. Moreover, to ensure complete clarity, the conditional offer should be in writing.
Next, the Guidance document states that for a job offer to be considered bona fide, the qualified employer should have evaluated all relevant nonmedical information that could reasonably have been analyzed prior to this offer. The Guidance document provides the following examples as to when an employer may be able to show that it could not reasonably evaluate nonmedical information at the preoffer stage.
1. It may be too costly for law enforcement employers wishing to administer a polygraph examination to administer a preoffer examination making nonmedical inquiries and a postoffer examination making medical inquiries. In this case, the employer may be able to demonstrate that it could not reasonably evaluate the nonmedical polygraph information at the preoffer stage.
2. An applicant might state to a prospective employer that his current employer should not be asked for a reference check until after the potential employer makes a conditional job offer. In this case, the potential employer could not reasonably evaluate nonmedical information from the reference at the preoffer stage.
The Guidance document also provides that investigators should carefully scrutinize any offer that is withdrawn after a selection procedure containing both medical and nonmedical components to determine whether the applicant was rejected because of the medical component. Fire departments should evaluate their selection and screening procedures to ensure that appropriate inquiries are being made during this phase of the selection process.
Of particular importance to fire departments hiring from a pool of potential candidates, the Guidance document states that if more offers are made than positions exist, the qualified employer must hire individuals from the pool based on preestablished objective standards. In the event that the preestablished objective standards have an adverse impact on a protected class, the fire department must be able to justify the standard as job-related, consistent with business necessity. In addition, fire departments should be aware that bona fide job offers do not always need to be limited to current available vacancies but also can apply to anticipated openings.
The Guidance document also permits qualified employees to require documentation from individuals requesting reasonable accommodation. This documentation can be required concerning both the individual`s status as a qualified individual with a disability and the specific limitations and reasonable accommodations requested. This requested documentation is not to be considered a prohibited inquiry under the Guidance document.
Fire departments should be cognizant that, under the ADA, medical examinations and inquiries are permitted after an offer of employment but before employment has been initiated. Conditional employment offers based on the results of the examination or inquiry are permitted so long as all entering employees in the same job classification are subject to the examination or inquiry, regardless of disability, and the information obtained is maintained in a confidential manner. After the postoffer stage, the fire department may ask about an individual`s workers` compensation history, prior use of sick leave, injuries, diseases, general physical or mental health, and other inquiries that may be prohibited at the preoffer stage.
THOMAS D. SCHNEID is an associate professor and lawyer with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a certificate of advanced study in safety, a law degree, and an LLM (master of laws) degree in labor and employment. He has 14 years of experience as a consultant for general industry.
